Habiluk v. Canada (Attorney General), docket T-1470-98

Date: 19990225

Docket: T-1470-98

BETWEEN:

     PATRICK HABILUK,

     Applicant,

     - and -

     ATTORNEY GENERAL OF CANADA

     (Public Works and Government Services Canada)

     and STEVE TOKAR,

     Respondent.

     REASONS FOR ORDER

DENAULT J.

[1]      This is an application for judicial review in respect of a decision of the Public Service Commission Appeal Board where it was decided that the Appeal Board was without jurisdiction to proceed under section 21 of the Public Service Employment Act¹ ("the Act") since the applicant did not fall within the geographic area of selection specified by the employer pursuant to section 13(1) of the Act.

[2]      In the instance, the respondent Steve Tokar was appointed, without competition, to a position in the Winnipeg office of the Department of Public Works. The Right to Appeal notice (section 21) which was posted for Mr. Tokar's appointment was restricted, pursuant to section 13(1) of the Act, to:

[3]      By reading the decision of the chairperson of the Appeal Board, it is apparent that she was satisfied that the Department needed a replacement chief of project management who could quickly assume for one year, subject to earlier termination, the supervisory and management activities of the position from the Winnipeg office. She was also satisfied that the duties of the position required the individual to be present in the office on a day-to-day basis and that the Department was reluctant to pay the cost of relocating an employee to Winnipeg for a determinate, acting appointment.

[4]      It is not contested that the applicant, an employee of the Real Property Services section of Public Works and Government Services Canada, used to report to the Winnipeg office even though he had been working for four years in the Yukon Territory.

[5]      Subsection 13(1) of the Act states:

[6]      It is now established that section 13 of the Act accords considerable latitude to the Commission to establish the framework or area of competition, thereby permitting it to restrict eligibility to compete for a position², as long as the criteria bear some relationship to the nature of the particular position to be filled, having regard to the qualifications required and the duties and functions to be performed³. There is no doubt that in this case, the criteria established by the Commission bear a close relationship to the position to be filled and were justified by sound and practical considerations of personnel management.

[7]      The applicant argues that insofar as he was an employee of the Department's Real Property Services and that his position appeared on the organizational chart for the Department's Winnipeg office where he reported, he met the organizational restriction contained in the Right to Appeal notice. However, argues the applicant, the Appeal Board chairperson erred in fact and in law in relying on an irrelevant consideration, namely the physical location of his work.

[8]      This argument of the applicant, in my view, cannot stand. I cannot read the Department's notice respecting the Right to Appeal as being based on the organizational criterion only. In fact, by requiring that eligible persons occupy positions which are in the Department and in the RPS section and by identifying that section by reference to a street address in Winnipeg, the Department was clearly using two criteria, one geographic and the other organizational. Insofar as the applicant was not working in Winnipeg but had been working in the Yukon Territory for four years, he did not meet the geographic criterion even though his position appeared on an organizational chart for the Winnipeg office.

[9]      As an alternative argument, the applicant suggests that the area of selection retained by the Department was invalid because it was not so broad enough to cover a substantial group of employees who would reasonably be expected to appeal against the appointment.

[10]      This argument, in my view, cannot stand either. The evidence before the Board indicated that there were two potential appellants and the chairperson found that the area of selection was sufficiently broad to be meaningful. In the circumstances of the case, it was not unreasonable to hold that view. The jurisprudence does not impose that a minimum number of candidates apply for a position, but one can presume that it varies according to the nature of the position, the qualifications required for the position and the number of persons having those qualifications.

[11]      For these reasons, the application for judicial review is dismissed with costs.

                             ______________________________

                             Judge

Ottawa, Ontario

February 25 1999

     ¹      R.S.C. 1985, c. P-33 as amended.

     ²      Gayef v. Canada (Treasury Board) & al. (1993), 69 F.T.R. 56 (T.D.)

     ³      Bullion v. Public Service Commission Appeal Board [1980] 2 F.C. 110 at 113-114 (C.A.) (per Le Dain J. dissenting, whose reasons were adopted by the Supreme Court of Canada at [1980] 2 S.C.R. 578">[1980] 2 S.C.R. 578 at 580)